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The Supreme Court Is Sowing Abortion Chaos
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The Supreme Court Is Sowing Abortion Chaos

It’s time for a complete and total SCOTUS shutdown until we can figure out what’s really going on.

I’m going to try something unusual in this newsletter. Normally, when I write about law, I try to take complex legal proceedings and describe them as clearly and as simply as possible. I try to bring clarity out of confusion. Today, my goal is simple—to confuse you as much as I’m confused. 

On Monday morning, I thought we had clarity. For pro-life advocates, the news from the Supreme Court was bad. Chief Justice John Roberts had reversed himself, voting to strike down a law nearly identical to a law he voted to uphold just four years before, and dealing the pro-life cause yet another blow at the hands of yet another Republican-appointed justice. 

In June Medical Services v. Russo, five justices of the court voted together to strike down a Louisiana law that required abortion doctors to obtain admitting privileges at a hospital located within 30 miles of the abortion provider. This judgment reaffirmed Whole Women’s Health v. Hellerstedt, a case where five justices of the court joined to strike down a Texas law that likewise required abortion doctors to obtain admitting privileges at a hospital located within 30 miles of the abortion provider.

Why is it remotely remarkable SCOTUS reaffirmed an abortion precedent that was only four years old? Because the court had changed considerably since 2016. The vote in Whole Women’s Health was 5-3. Justice Antonin Scalia had recently died, and Justice Anthony Kennedy joined with the four Democratic appointees. Justice Roberts voted in dissent. He would have upheld the admitting privileges law.

After the 2016 presidential election, Neil Gorsuch replaced Scalia and Brett Kavanaugh replaced Kennedy. If Roberts held firm in his vote, there was a high probability that the court would uphold the Louisiana law and perhaps even reverse Whole Women’s Health—providing the pro-life movement with a rare (though marginal) victory at the Supreme Court. 

Spoiler alert: That’s not what happened. 

At first glance it looks like Justice Roberts simply switched sides. Rather than maintain his legal convictions, he yielded to stare decisis (the legal doctrine of following precedent) and struck down the Louisiana law. 

At second glance, however, the picture gets complicated. Roberts did not simply switch sides and join with his four progressive colleagues. In reality, the decision wasn’t 5-4, it was 4-1-4 with Roberts writing a partial concurrence that both affirmed and undermined Whole Women’s Health.

This is already confusing, and, dear readers, this newsletter has barely begun to baffle and confound!

Here’s what Roberts did—he affirmed the legal result of Whole Women’s Health (striking down the Louisiana statute), but he did not affirm the case’s legal reasoning. Whole Women’s Health was significant not just for its outcome, but also for the legal test that was applied to reach that result. In an important but subtle way, Whole Women’s Health had altered and strengthened the constitutional scrutiny applied to state laws impacting abortion access.

Here’s how—rather than merely asking whether an abortion restriction constitutes an “undue burden” on abortion rights (the “Casey standard”) the court in Whole Women’s Health created a balancing test. Here’s how Justice Roberts described the new standard:

[T]he Court in Whole Woman’s Health added the following observation: “The rule announced in Casey … requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” The plurality repeats today that the undue burden standard requires courts “to weigh the law’s asserted benefits against the burdens it imposes on abortion access.” (Internal citations omitted.)

Justice Roberts, to put it mildly, does not like this balancing test. Here’s his memorable rebuke:

In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy.” Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.”

Pro-life lawyers like me were laser-focused on the reality that Louisiana lost, and (compounding the disappointment) that only Justice Thomas expressed any clear dissatisfaction with Roe or Casey, the SCOTUS cases that profound the legal foundation for the abortion right itself. Consequently, many of us missed (or downplayed) the silver lining in the dark Roberts cloud. 

Pro-choice lawyers, by contrast, while pleased at the result, immediately saw the poison pill in Roberts’s opinion. They even wondered if June Medical could ultimately represent a modest defeat for abortion rights. Writing for SCOTUSblog, National Women’s Law Center vice president Gretchen Borchelt, expressed concern: 

Roberts is explicit: He is striking down the Louisiana law only because he must, as chief justice, show some semblance of respect for the rule of law. He is implicitly promising a different outcome in a case with different facts or in a case with a different anti-abortion law, one that he believes is not squarely governed by Whole Woman’s Health. He is openly stating his preference for a weaker undue burden standard to assess the constitutionality of abortion restrictions—one that allows a devastating range of abortion restrictions to be upheld. 

(As an aside, these contrasting responses represent a crucial aspect of the modern culture war in a microcosm—both sides think they’re losing.)

Then, today, the plot thickened, and pro-choice concerns were (partially) vindicated. In two interesting orders, SCOTUS granted certiorari in two abortion cases, vacated the judgments, and remanded the cases for further review in light of the court’s opinion in June Medical

This process (called “GVR”, short for “grant, vacate, and remand”) isn’t unusual, but the results here were intriguing. The court vacated two court opinions—both from the 7th Circuit—that blocked enforcement of pro-life laws, one requiring an ultrasound at least 18 hours before an abortion; the other requiring lawyers for minors seeking an abortion to notify parents of court-authorized abortions. Both cases were called Box v. Planned Parenthood (Kristina Box is Indiana’s commissioner of public health), and they shared something in common—the 7th Circuit relied at least in part on Whole Women’s Health to render its decisions. 

In fact, in one of the Box cases, Whole Women’s Health was so prominent that it earned a desperate cry for clarity in the state of Indiana’s cert petition. The state argued that Whole Women’s Health is “wreaking havoc among lower courts reviewing abortion laws”:

Whole Woman’s Health v. Hellerstedt has left lower court judges confused and conflicted over proper application of undue-burden doctrine. While the Court in Hellerstedt purported merely to apply the undue-burden test from Planned Parenthood of Southeastern Pennsylvania v. Casey, many lower court judges have taken it to create an entirely new decisional rubric, one that not only raises the bar for States defending new abortion laws, but one that also undermines the Court’s own pre-Hellerstedt decisions and thereby reopens many standard abortion regulations to fresh constitutional scrutiny. (Internal citations omitted.)

What does all this mean? I could at this point quote Chazz Michael Michaels, Will Ferrell’s character in the glorious cinematic achievement called Blades of Glory, “No one knows what it means, but it’s provocative. It gets the people going.” 

But that’s not quite right. I think I know what all this means. With great humility and blazing awareness of my potential wrongness, here’s where I think we are:

1. The combination of Whole Women’s Health and June Medical mean that admitting privileges laws are toast, but …

2. The balancing test announced in Whole Women’s Health is also toast; SCOTUS is back to applying the old-school Casey test to abortion regulations, however …

3. There’s little guidance from SCOTUS regarding what even the old-school Casey test really, truly means (the test is rather malleable), and also…

4. There’s still no hard evidence that any justice besides Clarence Thomas is willing to reconsider either Casey or Roe, and thus the core of the abortion right remains secure.

So it’s a mess. In fact, I could have simply substituted this entire 1400 word (so far) analysis with a gif, one of my favorites—Justice Roberts at the door of the Supreme Court:

The law is confused and contentious. The future is uncertain. I’m tempted to do my best Donald Trump impersonation and say that I, David A. French, call for a total and complete shutdown of Supreme Court abortion jurisprudence until the justices can figure out what is going on, but I have the distinct feeling that the court is going to place its own pause button on cert grants, at least until the reaffirmed Casey standard works back through the lower courts. 

In the meantime, the culture marches on. I’ve posted this chart before, and I’ll post it again:

While the court fiddles, the culture heals. Conservatives have been reminded once again that it’s folly to place their trust in judges, but they should also know that the courtroom isn’t the only relevant battlefield. It’s not even the most relevant battlefield. The fight for life will be ultimately won through hearts and minds, and that’s where the pro-life movement has gained its most valuable ground.

One last thing … 

I love it when fabulously wealthy entertainment and tech companies compete to produce the next great science fiction/fantasy series. Behold, the trailer for Apple TV’s Foundation series:

Photograph by Sarah Silbiger/Getty Images.

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.